MEMAJ v. BROTHERHOOD SYNAGOGUE (2024)

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered January 9, 2023, which, to the extent appealed from, denied third-party defendant IRL Systems, Inc.’s motion for summary judgment dismissing third-party plaintiff The Brotherhood Synagogue's (the Synagogue) claim for contractual indemnification, unanimously affirmed, without costs.

Plaintiff, an employee of IRL, was injured while he was performing duties pursuant to a contract IRL had with the Synagogue for fire alarm and sprinkler services.  The court correctly denied IRL's motion for summary judgment dismissing the Synagogue's claim for contractual indemnification.  Although IRL and the Synagogue entered into a contract in 2007, which did not contain an indemnification provision, they subsequently entered into a contract in 2016 which contained an indemnification provision and merger clause.  The 2016 contract therefore superseded the 2007 contract, especially in light of the fact that the type of work that IRL was to perform pursuant to the 2016 contract was the type of work that was being performed at the time of plaintiff's accident (see Hyuncheol Hwang v. Mirae Asset Sec. [USA] Inc., 165 A.D.3d 413, 413, 85 N.Y.S.3d 38 [1st Dept. 2018], lv denied 32 N.Y.3d 910, 2018 WL 6494345 [2018]).  Although the 2016 contract was not fully executed, there was objective evidence that the parties intended to be bound by its terms (see Ajche v. Park Ave. Plaza Owner, LLC, 171 A.D.3d 411, 414, 98 N.Y.S.3d 13 [1st Dept. 2019];  Smith v. 21 W. LLC Ltd. Liab. Co., 29 A.D.3d 360, 361, 816 N.Y.S.2d 23 [1st Dept. 2006], lv denied 9 N.Y.3d 807, 843 N.Y.S.2d 537, 875 N.E.2d 30 [2007]).

We have considered IRL's remaining arguments and find them unavailing.